Shortly before Summer, the Belgian government finally reached a final governmental agreement on 17 June 2022, on the so-called “labour deal” that was announced mid-February. This governmental agreement follows the political agreement reached in February, the (undisclosed) pre-draft bill and the subsequent advice of the National Labour Council of 17 May 2022.
The much-discussed labour deal aims at increasing the employment rate on the labour market to 80% by 2030, on the one hand, and improving employees’ work-life balance, on the other hand, by introducing a series of measures relating to:
(i) flexibility and the improvement of work-life balance 2 (ii) training of employees 4 (iii) dynamic labour market 5 (iv) platform work and e-commerce 6
The main measures are summarised in this briefing.
1. FLEXIBILITY AND IMPROVEMENT OF WORK-LIFE BALANCE
Four days-work week Probably most appealing to many, is the possibility for employees to perform a full- time work schedule in four instead of five days. A four days-work week would allow employees to perform longer working hours (up to 9.5 hours per day, if this is provided in the company work rules, or up to 10 hours per day if a company-level collective bargaining agreement is reached), with one additional day off per week in return. A similar initiative is being envisaged in the United Kingdom, with a trial period currently ongoing which should help analysing how employees will respond to having an extra day off per week.
Variable work schedules Provided such is foreseen in the company work rules, employees would have the possibility to alternate the number of working hours per week, by working more one or two week(s) (without however exceeding 45 hours per week) and less the following week(s).
Practicalities Both with respect to the four days-work week and the variable work schedules, the initiative would always be with the employee, who would have to file a written request with the employer. Employees having filed such a request can never experience any adverse action (such as termination of employment) as result of their request. The employer can accept or refuse, noting that any refusal would need to be motivated within one month following the request. Any agreement regarding a four days-working week or variable work schedules must be in writing and would be valid for a (renewable) six months’ period.
Finally, performing overtime would not be allowed if employees are working in a four days-work week or on the basis of variable work schedules, which is as such not surprising considering that the aim of these measures is to improve the employees’ work-life balance.
Right to disconnect The increased use of various ICT tools combined with an increase in homeworking arrangements, has blurred the line between working time and spare time. The government therefore intends to make employers and employees better aware of the reasonable use of ICT tools outside of working hours. In line with initiatives that were taken at EU level in the past years, a right to disconnect would be introduced in Belgium.
Employers with at least 20 employees would be required to respect the right of employees to be “offline” after working hours. Unless a collective bargaining agreement laying down the terms and conditions of the right to disconnect would be entered into at national level or sector level, employers with at least 20 employees must agree on rules regarding “disconnection” in a company level collective bargaining agreement or in the company work rules by 1 January 2023. These rules on the right to disconnect would have to respect a minimum framework provided for by law.
Part-time employees with variable work schedules The labour deal suggests that the current five days’ notice period for informing part-time employees working on the basis of variable work schedules about their work schedule, should be increased to seven days (with several exceptions).
Derogations from the seven-days’ notice requirement would remain possible if they are included in a sector- level collective bargaining agreement that was introduced prior to the entry into force of this new measure.
Whilst this measure intends to improve employees’ work-life balance, we anticipate that this measure will reduce instead of increase flexibility on the labour market.
2. TRAINING OF EMPLOYEES
Employee training To address the skills shortage on the Belgian labour market, the labour deal provides that employees would be entitled to additional training. Each full-time equivalent would be entitled to a number of days of training per year at the employer’s expense, equal to three days of training in 2022, four days in 2023, and five days as from 2024.
Employers with less than 10 employees would be exempt from this obligation, whilst employers with between 10 and 20 employees would have an obligation to only offer one day of training per full-time equivalent per year.
Individual training plan In addition, employers with at least 20 employees would have to draw up an individual training plan on a yearly basis by 31 March of the relevant calendar year, determining the proposed trainings and the targeted audience. This individual training plan would have to be submitted to the works council (or absent any works council, to their trade union delegation) beforehand allowing the employee representatives to issue an advice by 15 March. Absent any works council or trade union delegation, the proposed individual training plan would have to be submitted to the employees directly by 15 March.
3. DYNAMIC LABOUR MARKET
Transition scheme during a notice period In an attempt to help employees transition into a new job while they are performing a notice period, a new transition scheme would enable those employees to already commence working for a “new employer”.
Practically speaking, the employee would during the transition period be leased out to the “new employer” by way of derogation to the prohibition of lease of employees, with the mediation of a temporary employment agency or an employment service. In terms of formalities, an agreement would have to be concluded between the “old employer”, the “new employer”, the employee and the temporary employment agency or employment service.
During the transition period, the “old employer” would continue to pay the employee’s salary, (partly) compensated by the new employer.
The “new employer” would be required to contract the employee on the basis of an open-ended employment agreement at the end of the transition period, or to pay a compensation equal to 50% of the remuneration corresponding to the length of the transition period to the employee if no contract is offered.
Aimed at simplifying the possibilities of employees to transition into a new job, it remains to be seen how often this, administratively rather burdensome possibility, will actually be used in practice.
Activating measures for terminated employees Employees dismissed with a notice period of at least 30 weeks, would be entitled to be absent from work during the last third of the notice period to follow additional training, coaching, outplacement, etc. (which come on top of the existing outplacement regime) maintaining their right to remuneration. The value of this training would be equal to the amount of the employer’s social security contributions on this final third of the notice period and would be financed by these employer’s social security contributions.
4. PLATFORM WORK AND E-COMMERCE
Increased protection for platform workers To address the discussion relating to the status of platform workers (employee vs. self-employed), a new rebuttable legal presumption of employee status would be introduced for persons active in the platform economy.
The legal presumption would be based on eight criteria, being the possibility of (i) imposing exclusivity with the platform, (ii) using geolocalisation for other means than the good functioning of the platform, (iii) restricting the freedom of choice regarding the way of performing the work, (iv) restricting the income level of a platform worker, e.g. by paying hourly rates, (v) obliging the platform worker to comply with rules on behaviour and appearance, (vi) attributing future work opportunities by way of assessing the platform worker’s performance, (vii) restricting the freedom of organisation of work, and (viii) restricting the possibilities of building a client base outside of the platform.
If at least three out of these criteria (or two out of the last five criteria in the list) are met, the relationship with this platform worker will be considered to be an employment relationship unless the opposite can be demonstrated. Such proof can be provided with all possible means.
Moreover, platform workers (irrespective of whether they are considered as employees or self-employed contractors) would benefit from a mandatory insurance against work accidents at the expense of the provider of the platform.
Night work in the e-commerce sector The current restrictions on night work (work performed between 8 pm and midnight) would be further loosened, among other things, by reducing the role of trade unions in the implementation process for night work within the company.
Going forward, only one (instead of all) trade union’s agreement would be required to implement a night work regime in the e-commerce sector. This system will be evaluated by the National Labour Council within two years following the entry into service of this measure.
In addition, companies would be entitled, exceptionally, to start a trial project for a period of up to 18 months during which employees can work between 8pm and midnight on a voluntary basis and without any trade union authorisation being required.
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As a next step, the pre-draft bill will now need to be transformed into draft legislation which will have to be discussed and approved in Parliament. Expectations are that the final legislation will enter into force in the final quarter of 2022.
Paul GEEREBAERT - Partner - p.geerebaert@liedekerke.com - T: +32 2 551 14 66
Bruno AGUIRRE - Senior Associate - b.aguirre@liedekerke.com -T: +32 2 551 14 58
